In a judicial foreclosure, the foreclosing party must bring a lawsuit to get the foreclosure started. You will be notified of the foreclosure lawsuit when papers called a summons and complaint are served (delivered) to you. The paperwork will advise you of the lawsuit and give you a deadline to respond if you choose to contest the action.
Whether you respond is up to you. Either way, the mortgage holder will be required to prove that the foreclosure is legal. Although, if you don’t respond to the suit, the chances are excellent that the foreclosure will go through. The proof will typically consist of a thick bundle of documents purportedly containing various papers you signed when obtaining or refinancing your mortgage, like a mortgage (or deed of trust) and a promissory note. There will also likely be notices, signed agreements, accountings of payments, and written statements under oath (declarations) or statements sworn before a notary public (affidavits) from the lender or servicer's employees.
As a general rule, if you don’t respond by, the court will accept the papers as evidence that will support a foreclosure judgment and order for sale. If you respond, you will have the opportunity to tell a judge why you think the papers are wrong and that foreclosure is not warranted. To contest the foreclosure, you must file an “answer” in most places. In it, you state your factual and legal arguments for opposing the foreclosure.
If you have evidence of your own regarding these issues, you also can file your own sworn statements. For example, if the foreclosing party claims that you missed five payments, but you can prove—typically with canceled checks—that you missed only one, you would submit a statement under oath to that effect and attach your canceled checks.
After you file your answer with the court, the foreclosing party may file a motion for summary judgment, which you must respond to, and the court will hold a hearing on the matter. The court will grant judgment in favor of the foreclosing party if no dispute exists regarding the critical facts of the case. But if the court denies summary judgment, the case will proceed toward a trial.
Before the trial, discovery will take place. In the discovery process, you and the foreclosing party ask each other for facts, documents, and other information prior to the trial. Each side may ask the other to provide certain information that might help prove or disprove the right to foreclose through a demand for production of documents, interrogatories, and depositions.
At the trial, the foreclosing party must prove it has the right to foreclose. Then, you must prove that the foreclosing party should not be permitted to foreclose. You will both present your cases, sometimes through witnesses who can be questioned by the judge and cross-examined by the other side. At the end of the trial, the judge will either:
You’ll most likely need to hire an attorney to be successful in challenging a foreclosure in court. So, if you think you might want to fight a judicial foreclosure, consider talking to a foreclosure attorney who can advise you about what to do in your particular circumstances.